In any business you may encounter difficult employees leading many human resource managers to lament "its so hard to find good help these days."  Difficult employees may have difficulty coming to work on time, have volatile tempers or simply under perform their duties.  It is important for the human resource managers to have a working knowledge of employment law before terminating such an employee.  Doing it the wrong way or for the wrong reason may expose your business to costly lawsuits.

Under the law all employment relationships begin as "at will" relationships. This means that the employee may quit at any time and the employer may terminate the employee at any time. This "at will" relationship may be modified by two things: Statutory constraints; or Contract constraints. In Part I - we will deal with the statutory constraints. Part II will address contract restrictions.

Statutory Constraints.

Your local, state and federal government may pass laws which restrict the employers ability to terminate an employee.  The most common restrictions relate to terminations occurring for what legislators have determined to be discriminatory or bad motives.

CERTAIN CLASSIFICATIONS PROTECTED

There are a number of local, state and federal laws that protect specific classes of individual from discriminatory hiring or firing based on their classification. These classifications including restrictions against discriminating on the basis of race, sex, color, disability, religion, age, sexual preference, national origin, ancestry, marital status, and even financial considerations if the employee is receiving public assistance.

In Minnesota, the applicable state and local laws protecting against class discrimination include the following:

Federal restrictions may also apply. There are a number of federal statutes that also prohibit discrimination based on class. However, these statutes apply only to larger companies having 25 or more employees. These statutes include the following:

1. Parental Leave. Taking parental leave pursuant to MSA § 181.941
2. Worker's Compensation. Filing a Workers Compensation claim under MSA § 176.001
3. Wage and Hour Violations. Complaining of wage and hour violations such as overtime pay is protected under both state and federal law - 29 USC § 215 and MSA § 177.21.
4. Labor Activities. Involvement in an organized labor activity is protected under federal and state law - 29 USC § 158 and MSA § 179.12.
5. OSHA. Complaining of environmental concerns or violations is also protected under state and federal law. 29 USC § 651 and MSA § 182.65.
6. Retirement and Welfare Benefits (ERISA). Asserting a right to retirement and other employee benefits is a protected activity.
7. Requesting a Review of Personnel File. An employee is entitled to review a copy of their personnel file at any time. They are also entitled to add any explanations to the file that they deem necessary. There are strict time lines for providing access to a requested file and there can be no reprisals for the request.

IT IS IMPORTANT TO HAVE A HUMAN RESOURCE AND EMPLOYEE HANDBOOK TO AVOID CONFUSION ON THESE ISSUES.

In the event a disgruntled worker does initiate a lawsuit, the services of a electronic discovery and legal hold attorney may be necessary.

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